Crim Law / Procedure

Front 1

What are the due process requirements for criminal statutes?

Back 1

1) Fair warning - a person of ordinary intelligence must be able to discern what is prohibited

2) No arbitrary and discriminatory enforcement.

Front 2

What are the substantive limitations on federal and state legislatures?

Back 2

1) No ex post facto laws
2) No Bill of Attainder

Front 3

What are some rules of construction for criminal statutes?

Back 3

1) Criminal statutes are construed strictly in favor of defendants
2) If two statutes apply and reach different conclusions, the more specific staute will be applied.
3) The newer statute will control an older statute.
4) Under new comprehensive codes, crimes comitted prior to the effective date of the new code are subject to prosecution and punishment under the law as it existed at the time the offense was committed.

Front 4

What are the merger rules?

Back 4

1) A person may not be convicted of attempt + crime or solicitation + crime

Front 5

What is the double jeopardy rule for lesser included offenses?

Back 5

A person may not be tried or punished for a lesser included offense of he has been put in jeopardy for the greater offense.

A court can impose multiple punishments at a single trial where the punishments are for two statutorily defined offenses specifically intended by the legislature to carry seprarate punishments, even though the offenses rise from the same transaction and constitute the same crime.

Front 6

What are the general elements of a crime?

Back 6

1) Mens rea
2) Actus reus
- a volitional act
(basically not
unconscious)
3)Concurrence of 1&2

A failure to act can also be an "act" if:

1) There is a specific duty imposed by law
2) The defendant has knowledge of the facts giving rise to the duty, and
3) It is reasonably possible to perform the duty

Front 7

What is a specific intent crime?

Back 7

A crime which requires a specific intent or objective.

Front 8

What is a general intent crime?

Back 8

A crime in which the intent can be inferred from the act, so long as defendant is aware that he is acting in a proscribed away and that any required attendant circumstances exist.

Front 9

What is transferred intent?

Back 9

A defendant is liable under the doctrine of transferred intent when he intends the harm that is actually caused but to a different victim or object. Applies to homicide, battery, and arson.

Front 10

What are the 4 MPC states of mind and their definitions?

Back 10

Purposely - Conscious object to engage in proscribed conduct

Knowingly - Awareness that conduct is of a particular nature or will cause a particular result

Recklessly - consciously disregarding a substantial known risk

Negligently - Failure to be aware of a substantial risk.

Front 11

What is a principal?

Back 11

The person who commits the illegal act. They are liable to the principal crime.

Front 12

What is an accomplise?

Back 12

A person who aids or encourages the principal to commit the illegal conduct. They are liable for the principal crime if they intended to aid or encourage crime, and for any other crimes that were probable or forseeable.

Front 13

What is an accessory after the fact?

Back 13

A person who aids another to escape knowing he has committed a felony. This person is liable for the lesser crime of being an accessory after the fact.

Front 14

What are some exceptions in accomplise liability?

Back 14

Members of a protected class are excluded from accomplise liability.

A party neccessary to a crime who is not provided for in a statute has no liability.

Front 15

When can a person withdraw from being an accomplise?

Back 15

This must happen before the crime becomes unstoppable. The withdrawer must:

1) Repudiate (which is sufficient for mere encouragement)

2) Attempt to neutralize if participation went beyond mere encouragement.

3) Notifying the police or taking other action to stop the crime is sufficicent.

Front 16

What are the elements of solicitation?

Back 16

1) Inciting, counseling, advising, urging, or commanding another to commit a crime,

2) With the intent that the person solicited commit the crime.

Front 17

What are defenses to solicitation?

Back 17

The solicitor cannot be found guilty of the target crime because of a legislative intent to exempt her (ie a woman cannot solicit a man to transport her across state lines for immoral purposes.)

Front 18

What are the elements of conspiracy?

Back 18

1) An agreement between two or more persons
2) An intent to enter into the agreement
3) An intent by two or more persons to achieve the objective of the agreement

A majority of states now require an overt act as well, though an act of mere preparation will suffice.

Front 19

What are some special conspiracy rules?

Back 19

1) The agreement need not be express, it may be inferred from joint activity.

2) At common law, husband and wife could not conspire together, but most states have abandoned this distinction.

3) A corporation cannot conspire with a single agent, and there is a split of authority as to whether multiple agents can conspire with the corporation.

4) Under the Wharton rule, when two or more people are necessary for the commission of the offense (adultry, dueing) there is no conspiracy unless more parties participate than are neccesary

5) People in a protected class cannot be conspired with or commit the target crime

6) Under the traditional view if all other coconspirators are acquitted, the remainer cannot be convicted.

Front 20

When is a defendant liable for co-conspirators crimes?

Back 20

1) If the crimes were committed in furtherance of the objectives of the conspiracy, and 2) were forseeable.

Front 21

When does a conspiracy terminate?

Back 21

Upon completion of the wrongful objective - acts of concealment are not part of the conspiracy unless agreed to.

Front 22

Is impossibility a defense to conspiracy?

Back 22

No.

Front 23

What is withdrawal (consp?)

Back 23

Withdrawal from the conspiracy is not a defense to the conspiracy because it is comeplete as soon as there is an agreement and overt act.

Withdrawal can be a defense to further crimes (including the target crime) if conspiractor makes an affirmative act that notifies all members of the conspiracy of his withdrawal. Notice must be given in time for them to abandon their plans. Also, if an accomplise, must try to neutralize.

Front 24

What are the MPC withdrawal rules?

Back 24

In addition to regular withdrawal rules, MPC allows a person who does the regular withdrawal stuff and acts to thwart the conspiracy to withdraw.

Front 25

What are the elements of attempt?

Back 25

Atttemp is:

1) An act beoynd mere preparation (trad: dangerously close, mod: substantial step), and
2) Specific intent to commit the crime

Front 26

Is factual impossibility a defense to attempt?

Back 26

No. (It is factually impossible to have committed the crime).

Front 27

Is legal impossibility a defense to attempt?

Back 27

Yes. (The act which defendant undertook was not a crime).

Front 28

Is abandonment a defense?

Back 28

No, once the intent formed and the overt act was taken, he is guilty of attempt.

Front 29

What are the merger rules for attempt?

Back 29

Attempt merges with the target crime.

Front 30

What is the M'Naghten Rule?

Back 30

Under this rule, a defendant may is entitled to acquittal only if he had a mental disease or defect that caused him to either not know his act would be wrong or not understand the nature and quality of his actions.

Front 31

What is the irresistible impulse test?

Back 31

Under this test, a defendant is entitled to an acquittal only if, because of his mental illness, he was unable to control his actions or conform his conduct to law.

Front 32

What is the Durham Rule?

Back 32

A defendant is entitled to an acquittal if the crime was the product of mental illness. Broader than II or MN.

Front 33

What is the ALI rule?

Back 33

A defendant is entitled to an acquittal if he had a mental disease or defect and, as a result, he lacked the substantial capacity to:

a) Appreciate the criminality of his conduct, or

b) Conform his conduct to the requirements of law.

Front 34

Who bears the burden with the insanity defense?

Back 34

The defendant must raise the issue, there is a split as to who has the burden.

Front 35

Can the defendant plead "not guilty" at the arraignment and then later raise insanity?

Back 35

Yes.

Front 36

When can a defendant refuse a psychiatric evaluation?

Back 36

If he has not pled insanity - he must take the exam if he has pled insanity.

Front 37

What is the rule for being sane during trial?

Back 37

If a person is unable to understand the nature of the proceedings brought against him or to assist his lawyer in the preparation of his defense, they may not be tried, convicted, or sentenced.

Front 38

What is diminished capacity?

Back 38

Some states allow this defense when defendant is short of insanity but did not have the mental state required for the crime charged. Usually SI, some states GI.

Front 39

Is voluntary intoxication a defense?

Back 39

Yes, to SI crimes (purpose or knowledge) and the intoxication prevented the defendant from forming the intent (purpose or knowledge).

It is not a defense for malice, recklessness, negligence, or SI.

Front 40

What are the rules for involuntary intoxication?

Back 40

Involuntary intoxication may be treated a s a mental illness (under jx's insanity test).

1) Without knowledge of intoxicant
2) Under direct durress imposed by another
3) Pursuant to medical advice unaware of intoxicating effect.

Front 41

What are the common law and modern infancy rules?

Back 41

Common law: under age 7. 7-14, rebuttable presumption he will be unable to understand, 14 adults.

Most jx's just pick an age, 13 or 14.

This doesn't mean that yougder children can't be found delinquent in juvie / family courts.

Front 42

What are the rules for self-defense?

Back 42

A person without fault may use such force as reasonably appears to be neccessary to protect himself from the imminent use of unlawful force against himself. There is no duty to retreat.

If the person above also faces imminent death or great bodily harm, deadly force is justified.

The minority view is that, with deadly force, a person must retreat first, unless 1) the attack is in the victim's home, 2) the attack occurs while the victim is making a lawful arrest, or 3) the assailant is robbing the victim.

Front 43

When may an aggressor use self-defense?

Back 43

If he:

1) Effectively withdraws from the altercation and communicates to the other his desire to do so, or

2) The victim suddenly escalates the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw.

Front 44

What is the rule for defense of others?

Back 44

A defendant has the right to defend others if he reasonably believes that the person assisted has the legal right to use force in his own defense - only need reasonable appearance of the right to use force.

Front 45

What are the rules for defense of a dwelling?

Back 45

Nondeadly force may be used to prevent or terminate what is reasonably regarded as an unlawful entry into or attack on the defenders dwelling.

Deadly force may be used only to prevent a violent entry made with the intent to commit a personal attack on an inhabitant or to prevent an entry to commit a felony in the dwelling.

Front 46

What are the rules for defense of property?

Back 46

Deadly force may never be used in defense of property. Nondeadly force may be used to defend property in one's possession from unlawful interference but may not be used if a request to desist would suffice.

Front 47

Can force be used to regain possession?

Back 47

Only in hot pursuit.

Front 48

What levels of force can be used to prevent crime?

Back 48

Nondeadly force may be used to the extent that it reasonably appears necessary to prevent felony or serious breach of the peace.

Deadly force may be used only to terminate or prevent a dangerous felony involving risk to human life.

Front 49

What force may be used to effectuate an arrest by a cop?

Back 49

Nondeadly force may be used by police officers if it reasonably appears neccessary to effectuate an arrest. Deadly force is reasonably only if it is neccessary to prevent a felon's escape AND the felon threatens serious bodily harm.

Front 50

What force may be used to effectuate an arrest by a private person?

Back 50

A private person has a privelege to use nondeadly force to make an arrest of a crime was in fact committed and the private person has reasonable grounds to believe the person arrested has in fact committed the crime. A private person may use deadly force only if the person was actually guilty of the offense for which the arrest was made.

Front 51

What force may be used to resist arrest?

Back 51

Nondeadly force may be used to resist an improper arrest even if a known officer is making the arrest.

Deadly force may be used, however, only if the person does not know that the person arresting him is a police officer.

Front 52

What is the defense of neccessity?

Back 52

It is a defense to a crime that the person reasonably believed that commission of the crime was necessary to prevent an imminent and greater evil to society than the evil involved in the crime. Objective test is used, good faith belief not enough.

Rules:

Causing the death of another to protect property is never justifed.

The defense is not avaliable if the person is at fault in creating the situation in which he must choose between evils.

Front 53

What is the defense of public policy?

Back 53

A police officer or another assisting him is justified in using reasonable force against another, or in taking property, provided the officer acts pursuant to law, court order, or process requiring or authorizing him to so act.

Front 54

What about children?

Back 54

Parents of minors and those in loco parentis may lawfully use reasonable force upon a child for the purpose of promoting its welfare.

Front 55

What is duress?

Back 55

It is a defense to a crime other than a homicide that the defendant reasonably believed that another person would imminently inflict death or great bodily harm upon him or a member of his family if he did not commit the offense.

Front 56

What is mistake of fact?

Back 56

Mistake of fact is a defense to the extent that it shows the defendant lacked the state of mind required for the crime.

If the mistake is offered to disprove a specific intent crime, the mistake need not be reasonable. If it is offered to disprove any other state of mind, it must have been reasonable mistake or ignorance.

Front 57

What is mistake or ignorance of law?

Back 57

Generally, it is not a defense that the defendant believed he was acting legally, even if the belief was reasonable and based on the advice of an attorney.

However, reliance on an attorney can negate a mental state element.

Front 58

What are the exceptions to mistake of law?

Back 58

If a) the statute proscribing the conduct was not published or made reasonably avaliable before the conduct, or b) there was reasonable reliance on a statute or judicial decision, or c) in some jx's, there was a reasonable reliance on an official interpretation or advice.

Also, ignorance of the law may negate intent:

Selling firearm to a known felon -- what if you thought their crime was a misdemeanor?

Front 59

Is consent a defense?

Back 59

Usually not, unless a crime requires lack of consent (rape), or with minor assaults or batteries.

Where it is a defense, it must be established that:

1) Consent was voluntarily and freely given,

2) The party was legally capable of consenting, and

3) No fraud was involved in obtaining the consent.

Front 60

What are the rules for entrapment?

Back 60

Entrapment is a defense if 1) the criminal design originated with law enforcement officers, and 2) the defendant was not predisposed to commit the crime prior to contact by the government

Front 61

Can a person be entrapped by a private citizen?

Back 61

No.

Front 62

Can an entrapment defense be based on the fact that a government agent provided an ingredient for commission of a crime (e.g. raw materials for drugs?)

Back 62

Only one case on this question in federal court - federal law says no.

Front 63

What is battery?

Back 63

Battery is an unlawful application of force to the person of another resulting in either bodily injury or offensive touching. (A misdemeanor)

Front 64

What is aggravated battery?

Back 64

Most jx's recognize aggravated battery and make them a felony. Agg batter is: 1) Battery with a deadly weapon, 2) Battery resulting in serious boldily harm, 3) battery of a child, woman, or police officer.

Front 65

What is assault?

Back 65

Assault is either:

1) An attempt to commit a battery, or

2) The intentional creation other than by mere words of a reasonable apprehension in the mind of the victim of imminent bodily harm. If there has been actual touching, the crime must be battery.

Front 66

What is aggravated assault?

Back 66

Aggravated assault (with a deadly weapon or with intent to rape or main) is treated more seriously than simple assault.

Front 67

What is mayhem?

Back 67

Mayhem is the disablement or dismemberment of a bodily part.

The recent trend is to abolish mayhem and treat it as a form of aggravated battery.

Front 68

What is common law murder?

Back 68

The unlawful killing of a human being with malice aforethought.

Front 69

When does malice aforethought exist?

Back 69

Malice aforethought exists if there are no facts reducing the killing to voluntary manslaughter or excusing it and it was committed with one of the following states of mind:

1) Intent to kill (intentional use of a deadly weapon authorizes a permissive inference of intent to kill)
2) Intent to inflict great bodily injury
3) Reckless indifference to an unjustifiably high risk to human life
4) Intent to commit a felony

Front 70

What is voluntary manslaughter?

Back 70

VM is a killing that would be murder but for the existence of adequate provocation, which is:

1) It was provocation that would arouse sudden and intense passion in the mind of am ordinary person, causing him to lose self-control (exposure to a threat of deadly force or finding your spouse in bed with another are adequate)

2) The defendant was in fact provoked

3) There was not sufficient time between provocation and killing for passions of a reasonable person to cool, and

4) The defendant in fact did not cool off between the provocation and the killing.

Front 71

What is imperfect self-defense?

Back 71

Some states recognize ISD, where murder is reduced to manslaughter even though the defendant was at fault in starting the altercation, or the defendant unreasonably but honestly believed in the neccessity of responding with deadly force.

Front 72

What is involuntary manslaughter?

Back 72

A killing is involuntary manslaughter if it was committed with criminal negligence or during the commission of an unlawful act (misdemeanor or non-violent felony)

Front 73

What is first degree murder?

Back 73

2nd degree murder (common law murder) is elevated to 1st degree murder if defendant made the decision to kill in a cool and dispassionate manner and actually reflected on the idea of killing, even if for a brief period (deliberate and premeditated).

Also, murder during comission of arson, robbery, burglary, rape, mayhem, and kidnapping are first degree murder.

Some states have atrocious means to elevate e.g. torture, trainwrecking.

Front 74

What is the felony murder rule?

Back 74

1) Any death that occurs in the comission of or in an attempt to commit a felony is murder.

2) The felony must be inherently dangerous.

3) The felony must be distinct from the killing (not aggravated batter that caused death)

4) Death must have been a forseeable result (minority of states say malum in se)

5) Must be caused before defedant's immediate flight (once reach a place of temporary safety, subsequent deaths are not fm)

6) In most jx's, defendant is not liable if a co-felon is killed as a result of resistance from police or the victim.

7) Agency jx: defendant is not liable if an innocent party is killed by police officer or resisting victim. Proximate cause jx: may be liable.

Front 75

What is misdemeanor manslaughter?

Back 75

The misdemeanor must be malum in se (inherently wrong) or the death must have been forseeable as a result of the misdemeanor.

Front 76

What are the causation rules for murder?

Back 76

1) Cause in fact + proximate cause
2) Rule for crim law: "A defendant's conduct is the proximate cause of the result if the result is a natural and probably consequence of the conduct, even if the defendant did not anticipate the precise manner in which the result occurred. Superseding factors break the chain of proximate causation.

3) An act that hastens an inevitable result is still the legal cause of that result. Preexisting weakness or fragility does not break the chain of causation.

Front 77

What is false imprisonment?

Back 77

1) Unlawful confinement
2) Without valid consent

Front 78

What is kidnapping?

Back 78

1) Unlawful Confinement
2) Some movement
or
3) Concealment

P.S. Aggravated kidnapping is ransom, other crimes, offensive purposes, child stealing

Front 79

What is rape?

Back 79

Unlawful carnal knowledge of a woman by a man not her husband without her effective consent. The slightest penetration is sufficient.

Front 80

Is the husband component of rape still valid?

Back 80

Most states have done away with it.

Front 81

When is consent lacking for rape purposes?

Back 81

1) Intercourse accomplished by actual force
2) Threats of great and immediate bodily harm
3) Incapacity to consent due to intoxication, unconsciousness, or mental condition.
4) The victim fraudulently was caused to believe that the act is not intercourse.

Front 82

What is statutory rape?

Back 82

Carnal knowledge of a woman under the age of consent - a strict liability crime. Majority jx's do not allow reas mistake.

Front 83

What is adultery?

Back 83

Adultery is committed by both parties to sex if either is validly married to someone else. Often required to be open and notorious.

Front 84

What is fornication?

Back 84

Sexual intercourse or open and notorious cohabitation by unmarried persons.

Front 85

What is seduction?

Back 85

Inducing, by promise of marriage, an unmarried woman to engage in intercourse. (MPC does not require chastity or that the female be unmarried).

Front 86

What is incest?

Back 86

Sex between closely related persons.

Front 87

What is Bigamy?

Back 87

Common law strict liability offense of marrying someone while having another living spouse.

Front 88

What is larceny?

Back 88

1) A taking
2) And carrying away
3) Of tangible personal property
4) Of another with possession
5) By trespass (without consent or consent by fraud)
6) With intent to permanently deprive that person of his interest in the property.

Front 89

What is possession versus custody?

Back 89

Low level employees have custody, high level employees and bailees have possession.

Front 90

What are some larceny intent rules?

Back 90

1) Intent to create a substantial risk of loss or intent to sell or pledge goods to the owner is sufficient

2) When defendant believes the property belongs to them or where the intent is to borrow the property, there is insufficient intent

3) Larceny can be committed with lost or mislaid property, but not with abandoned property (lost - intent to keep it even though you can reas find owner)

Front 91

What is the "continuing tresspass" rule?

Back 91

Some jx's If the defendant wrongfully takes property without the intent to permanently deprive and later decides to keep it, guilty of larceny when she decides to keep it.

Front 92

What is embezzlement?

Back 92

1) Fraudulent
2) Conversion
3) Of personal property
4) Of another
5) By a person in lawful possession of that property.

-If defendant intends to restore the EXACT property, not embezzlement

-Not committed if conversion is pursuant to a claim of right

Front 93

What is false pretenses?

Back 93

1) Obtaining title
2) To personal property of another
3) By an intentional false statement of a past or existing fact
4) With intent to defraud the other

The misrep must have deceived/caused reliance, and must be a major factor - misrep as to what will happen in the future is insufficient. A false promise is also not sufficient.

Front 94

What is robbery?

Back 94

1) A taking
2) Of personal property of another
3) From the other's person or presence
4) By force or threats GBH against person, member of family, or in his presence
5) With intent to permanently deprive him of it

-must give up property out of force / fear

Front 95

What is extortion?

Back 95

Common law: corrupt collection of an unlawful fee by an officer under color of office.

Modern: Obtaining property by means of threats to do harm or to expose information. Some statutes make the crime complete when the threat is made with intent to obtain property.

Front 96

What is receipt of stolen property?

Back 96

1) Receiving possession and control
2) Of stolen personal property
3) Known to have been obtained in a manner constituting a criminal offense
4) By another person
5) With the intent to permanently deprive the owner of his interest in it

Possesion need not be manual - put in my warehouse, I arrange a sale by a fence, etc.

Interception by police and use with owner's permission is no longer stolen (can still be convicted of attempted stolen property)

Front 97

What is theft?

Back 97

Modern statutes define and combine some or all property crimes as theft.

Front 98

What is forgery?

Back 98

1) Making or altering
2) A writing with apparent legal significance
3) So that it is false (i.e. a fake receipt, not an inaccurate real receipt)
4) With intent to defraud

Front 99

What is uttering a forged instrument?

Back 99

1) Offering as genuine
2) An instrument that may be the subject of forgery and is fake
3) With intent to defraud.

Front 100

What is malicious mischief?

Back 100

1) The malicious
2) Destruction of or damage to
3) The property of another

In this context, requires that damage have been intended or contemplated.

Front 101

What is burglary?

Back 101

1) A breaking (forming an opening by any force, fraud, intimidation)
2) entry (placing any part of the body or instrument through the opening)
3) OF a dwelling (a structure used with regularity for sleeping purposes
4) Of another (occupancy by someone other than defendant)
5) At night
6) With the intent to commit a felony or a larceny in the structure

Modern statutes often do away with breaking, dwelling, act at night, intent to commit felony (theft is often enough)

Front 102

What is arson?

Back 102

1) The malicious
2) Burning
3) Of the dwelling (MBE questions often assume that statutes extended to commerical structures etc without specifically stating so)

Must be a burning or charring not a blackening
4) Of another

Front 103

What is houseburning?

Back 103

1) Malicious
2) Burning
3) Of one's own dwelling
4) If the structure is in a city or town or so near to other houses as to cause a danger

Front 104

What is perjury?

Back 104

1) Taking an oath
2) Lying about material matter

P.S. Subornation of perjury is procuring or inducing perjury

Front 105

What is bribery?

Back 105

CL: Corrupt payment or receipt to officials for official action

Modern: Includes nonofficals and either person is busted

Front 106

What is compounding a crime?

Back 106

Agreeing for valuable consideration not to prosecute another for a felony or conceal comission of a felony or wherabouts of a felon. Modern: any crime.

Front 107

What is misprison of a felony?

Back 107

Failure to disclose knowledge of a felony - modern, not a crime without some affirmative act in aid of the crime.

Front 108

What rights have NOT been applied to the states via the 14th Amendment?

Back 108

The right to indictment by a grand jury.

Whether the 8th creates a "right to bail" (most states create a right to bail and prohibit excessive bail)

Front 109

What is the exclusionary rule?

Back 109

The exclusionary rule is a judge-made doctrine that prohibits the introduction of evidence obtained in violation of a defendant's 4th, 5th, and 6th Amendment rights.

Front 110

What are the exceptions to the fruit of the poisonous tree rule?

Back 110

1) Evidence obtained from a source independent of the original illegality

2) An intervening act of free will by the defendant

3) Inevitable discovery (would have been found anyway)

4) Violations of the knock and announce rule

5) In court identification cannot be excluded based on illegal detention

Front 111

What proceedings does the rule not apply to?

Back 111

1) Grand jury
2) Civil proccedings
3) Internal Agency Rules
4) Parole Revocation

*violation of federal wiretapping rules? Can't use in front of a grand jury

Front 112

What is the "good faith" exclusion to the exclusionary rule?

Back 112

When police act in good faith on 1) case law, 2) a facially valid statute, or ordinance, or 3) a computer report containing clerical errors not made by the police

Front 113

What are the "good faith reliance on a defective warrant" rules?

Back 113

If the police rely in good faith on a defective warrant, the evidence is still admissible unless:

1) The underlying affadavit was so lacking in probable cause that it couldn't be relied on

2) The warrant was defective on its face

3) The affiant lied to or misled the magistrate

4) The magistrate has wholly abandoned his judicial role

Front 114

What excluded evidence can be used for impeachment purposes?

Back 114

1) An otherwise voluntary confession taken in Violation of Miranda is admissible for impeachment purposes

2) Evidence obtained from an illegal search may be used by the prosecution to impeach defendant's, but not other's, statements

Front 115

What evidence can be used despite being fruit of the poisonous tree?

Back 115

Evidence obtained from an illegal confession (miranda) is admissible, though the cofession itself is not admissible.

Front 116

What happens if illegally obtained evidence gets admitted and the defendant is convicted?

Back 116

The Harmless error test - the prosecution must prove beyond a reasonable doubt that the error was harmless.

Front 117

What is the test for illegally obtained evidence in a habeous proceeding?

Back 117

The petitioner must show that that the error had a substantial and injurious effect. If the judge is in grave doubt as to the effect, the petition must be granted.

Front 118

When does the harmless error test ABSOLUTELY NOT apply?

Back 118

Denial of counsel at trial

Front 119

Can the defendant ask that the jury be out of the room during a evidence admissibility discussion?

Back 119

Yes - the defendant has a right to have the evidence hearing out of hearing of the jury, and the right to testify at a suppression hearing without his testimony being used against him.

Front 120

What does the 4th Amendment do?

Back 120

The Fourth Amendment provides that people should be free from unreasonable searches and seizures

Front 121

What is a seizure of a person?

Back 121

A seizure occurs when a reasonable person would believe that he is not free to leave or terminate an encounter with the government.

Front 122

What is an arrest?

Back 122

When the police take a person into custody against her will for purposes of criminal prosecution or interrogation

Front 123

What must an arrest be based on?

Back 123

An arrest must be based on probably cause.

Front 124

Define probable cause?

Back 124

Trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime.

Front 125

When is an arrest warrant required?

Back 125

A warrant is not required for an arrest in a public place but is required to enter a home and make an arrest, unless it's an emergency.

Front 126

What is a Terry stop?

Back 126

If the police have reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts, they may detain a person for investigative purposes.

If the police have reasonable suspicion that a suspect is armed and dangerous, they may detain him and frisk him for weapons.

Front 127

What is the permissible duration and scope of a Terry Stop / Terry Search?

Back 127

No longer than neccessary to conduct a limited investigation to verify the suspicion. The police may ask the detained person to identify himself and generally may arrest the detainee for failure to comply with such a request. The detention will also turn into an arrest if during the detention other probable cause for arrest arises.

Front 128

Are property seizures allowed under the Terry rules?

Back 128

Similarly valid if based on reasonable suspicion.

Front 129

What do police need to stop a car?

Back 129

Reasonable suspicion that a law has been violated.

Front 130

What about roadblocks?

Back 130

If some special law enforcement need is involved, the police may set up roadblocks without individualized suspicion.

To be valid, the roadblocks must:

1) Stop cars on the basis of some neutral, articulable standard

2) Be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility.

(I.e. drunk drivers, ok, search for illegal drugs, not ok)

Front 131

When may the police order the occupants out of a car?

Back 131

When the police have lawfully stopped a car, a cop may order the occupants out.

Front 132

Can a cop who has reasonable suspicion that a traffic law has been violated pull someone over even if their ulterior motive is to investigate the violation of some other law?

Back 132

Yes.

Front 133

Can police detain someone while they are (legally) searching his home for drugs?

Back 133

Yes, they may prevent him from entering the home unaccompanied while they are searching.

Front 134

To bring a suspect to the station house for questioning or fingerprinting, what do the police need?

Back 134

Full probable cause is required for a station house detention / fingerprinting / questioning.

Front 135

Does a person have Fourth Amendment protection when they are subpoenaed for a grand jury appearance?

Back 135

No, the forth amendment does not apply to 4th Amendment to these type of sezures.

Front 136

When may a police officer use deadly force to apprehend a suspect?

Back 136

When the officer has probable cause to believe that the suspect poses a significant threat of death or serious injury.

An attempt to make an arrest which results in the death of a suspect is not neccessarily a seizure governed by the 4th.

Front 137

What are the three questions to be asked in an evidentiary search and seizure question?

Back 137

1) Does the defendant have a fourth amendment right (seizure by the government concerning a place or thing in which the defendant had a reasonable expectation of privacy)?

2) Did the government have a valid arrest warrant? (issued by a neutral and detached magistrate on a showing of probable cause and reasonably precise as to the place to be searched and items to be seized?

3) If the police did not have a valid warrant, did they make a valid warrantless search and seizure?

Front 138

Who does the 4th Amendment protect against searches by?

Back 138

The Government, not against searches by private persons, including private security guards, unless deputized as officers of the public police.

Front 139

How does a person establish that they have a reasonable expectation of privacy?

Back 139

Totality of the circumstances, but a person has a legitimate expectation of privacy any time:

1) He owned or had a right to possession of the place searched

2) The place searched was in fact his home, whether or not he owned or had a right to possession of it

3) He was an overnight guest of the owner of the place searched.

Front 140

Does one have a reasonable expectation of privacy in things held out to the public?

Back 140

No:

1) The sound of one's voice
2) One's handwriting
3) Paint on the outside of one's vehicle
4) Account records held by a bank
5) The location of one's vehicle on public roads or its arrival at a private residence
6) Areas outside the home and related buildings (curtelege), such as a barn
7) Garbage left for collection
8) Land visible from a public place, even from a plane or helicopter
9) The smell of one's car or luggage

Front 141

How is a warrant issued?

Back 141

A warrant shall issue upon probable cause to believe that seizable evidence will be found on a person or premises at the time the warrant is executed. Officers must submit to a magistrate an affadavit setting forth circumstances enabling the magistrate to make a determination or probable cause independent of the officer's conclusions.

Front 142

Do informant's tips count as probable cause on a warrant affadavit?

Back 142

Use of an informant's tip must meet the totality of the circumstances test, that is, the affadavit may be sufficient even though the reliability and credibility of the informer or his basis for knowledge are not established. Note that the identity need not generally be revealed.

Front 143

What happens if there is a false statement in the affadavit?

Back 143

The warrant issued based on the affadavit will be invalid if all three of these are met:

1) A false statement was included by the affiant
2) The affiant intentionally or recklessly included the false statement, and
3) The false statement was material to the finding of probable cause

Front 144

What are the rules for reliance on a defective warrant in an evidentiary seizure situation?

Back 144

The same as with an arrest warrant

Front 145

What details must be included in the warrant?

Back 145

A warrant must describe with reasonable precision the place to be searched and items to be seized. If it does not, the warrant is unconstitutional, even if the underlying affadavit gives such details.

Front 146

Does a place to be searched have to be a location of a suspect?

Back 146

Absolutely not - if the police think there will be evidence found there, they can get a warrant and search it.

Front 147

Fill in the blank: the magistrate must be _______________________

Back 147

Neutral and detatched (NOT the attorney general)

Front 148

How is a warrant executed?

Back 148

Only the police and not private citizens may execute a search warrant, and it must be executed without unreasonable delay. Police must knock, announce their presence, and wait a reasonable time for admittance (unless the officer has a reasonable suspicion based on facts that announcing would be dangerous or futile or would inhibit the investigation). Police may seize any contraband or fruits or instrumentalities of crime that they discover, whether or not specified in the warrant.

Front 149

Does a violation of the knock and announce rule invoke the exclusionary rule?

Back 149

No.

Front 150

Does a search warrant include those found on the premises?

Back 150

No - though it does authorize their detention.

Front 151

What are the rules for a warrantless search incident to lawful arrest? (SITA)

Back 151

1) Incident to a lawful arrest, the police may search the person and areas which he might reach to obtain weapons or destroy evidence (including the entire passenger compartment of a car).

The police may do a "protective sweep" of an area to check for accomplises contemporaneous in time and place of the arrest.

Front 152

What about inventory searches?
(Search incident to incarceration)

Back 152

A person's entire body may be searched at the police station and inventory taken.

Similarly, an impounded car may be inventory searched - it can be stripped down to the chasis if need be.

Front 153

What is the automobile exception to the warrant requirement?

Back 153

If the police have reason to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item for which they had probable cause to search. If a warrantless search was valid at the time, it may be towed to the police station for a later search.

Note: if the police believe that the car itself is contraband, they may seize it from a public place without a warrant.

In the unlikely event that the pc applies to a container in the vehicle (luggage in the trunk) then only the luggage may be searched, not the rest of the car.

Front 154

Does the automobile exception apply to passenger's belongings?

Back 154

Yup - any packages may be searched in the car with PC.

Front 155

What is the plain view exception to the warrant requirement?

Back 155

The police may make a warrantless search when they:

1) Are legitimately on the premesis
2) Discover evidence, fruits, or instrumentalties of crime, or contraband
3) See such evidence in plain view
4) Have probable cause to believe that the item is evidence, contraband, or a fruit or instrumentality of crime

Front 156

What is the consent exception to the warrant requirement?

Back 156

A warrantless search is valid if the police have voluntary and intelligent consent.

Knowledge of the right to withhold consent is not a prerequisite to establishing a voluntary and intellgent consent. The scope of the search may be limited by the scope of the consent, but generally extends to all areas to which a reasonable person under the circumstances would believe it extends.

Front 157

What are the rules for authority of consent?

Back 157

A person with reasonably apparent authority to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants.

If co-occupant objects and search is directed against him, party #1 cannot consent.

Front 158

What is the stop and frisk exception to the warrant requirement?

Back 158

A person may be stopped without pc by police if police have rs of criminal acitivty.

RS armed and dangerous, may do a pat down for weapons.

If everything is legit to that point, can order out occupants of car and do a pat down if rs a&d.

During a pay down, can seize anything that, based on its plain feel, is a weapon or contraband, and such items are admissible as evidence.

Front 159

What is the hot pursuit /evanescent evidence exception to the warrant requirement?

Back 159

1) Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling

2) Police may seize without a warrant evidence likely to disappear before a warrant may be obtained,

3) Contaminated food or drugs, persons injured or threatened with injury, and burning fires justify warrantless searches and seizures.

Front 160

What is the administrative inspections and searches exception to the warrant requirement?

Back 160

Inspectors must have a warrant for searches of private residences and commercial buildings, but the probable cause required to obtain a warrant is more lenient than for other searches: A showing of a general and neutral enforcement plan will justify issuance of a warrant.

Front 161

What circumstances have justified warrantless searches under the administrative searches requirement?

Back 161

1) To seize spoiled or contaminated food

2) Administrative searches of a business within a highly regulated industry

3) Inventory searches of arrestees

4) Searches of airline passengers prior to boarding

5) Searches of probationers and their homes without grounds so long as a statute authorizes such a search

6) Searches of government employees desks and file cabinets where the scope is reasonable and there is a work-related need or reasonable suspicion of work-related misconduct.

7) Drug tests of railroad employees involved in an accident

8) Drug tests of persons seeking customs employment in positions connected to drug interdiction

9) Drug tests of public school students who participate in extracurricular activities

Front 162

What is the foreign country exception to the warrant requirement?

Back 162

The fourth amendment does not apply to searches and seizures by United States officials in foreign countries and involving an alien, at least where the alien does not have a substantial connection to the United States.

Ex. a warrantless search of an alien's home in Mexico by FBI agents

Front 163

What about border searches?

Back 163

No warrant is required at the border - citizen or no.

Roving patrols are allowed inside the border if an officer has rs that illegal aliens are in the vehicle.

Border officials may stop a vehicle at a fixed checkpoint inside the border for questioning of occupants and may disassemble the vehicle, even without reasonable suspicion.

Front 164

What about international mail?

Back 164

International mail may be opened when postal authorities have reasonable cause to believe that the mail contains contraband.

Front 165

Are "factory surveys" allowed to determine citizenship?

Back 165

Yes, this is allowed, and even illegally obtained evidence may be used at a civil deportation hearing.

Front 166

What about drug mules?

Back 166

Officials with rs that a traveler has contraband in his stomach may detain the traveler.

Front 167

Is "wiretapping" a search?

Back 167

Yes.

Front 168

What are the requirements for getting a wiretap warrant?

Back 168

1) Probable cause
2) The suspected persons involved in the conversations to be heard are named
3) The warrant describes with particularity the conversations that can be overheard
4) The wiretap is limited to a short period of time
5) The wiretap is terminated when the desired information has been obtained,
6) Return is made to the court showing what conversations have been intercepted

Front 169

What are the exceptions to the warrant requirement for wiretaps?

Back 169

A speaker assumes the risk that the person to whom he is speaking is an informer wired for sound or taping the conversation. A person has no 4th Amendment claim if he makes no attempt to keep a conversation private.

Also, pen registers (devices that record only phone numbers that are called) are not controlled by the 4th Amendment, but a statute is needed to use one.

Front 170

What is the "shocks the conscience" rule for collection of evidence?

Back 170

Evidence obtained in a manner which shocks the conscience (offends a sense of justice) is inadmissible under the Due Process clause. The reasonableness of a search is determined by balancing the society's need with the magnitude of the intrustion. Blood test = usually upheld. Surgery to remove a bullet? Great need.

Front 171

What amendments are invoked with confessions?

Back 171

4th, 6th, 5th, 14th.

Front 172

What is required for a confession to be admissible under the due process clause of the 14th (or I guess the 5th for the feds)?

Back 172

For a self-incriminating statement to be admissible under the due process clause, it must be voluntary as determined under the totality of the circumstances.

The Supreme Court has defined voluntary to mean without official compulsion (hence, a confession that is the product of mental illness is not involuntary).

Front 173

What test is used on appeal for admission of an involuntary confession?

Back 173

Harmless error test.

Front 174

What rights are invoked under the 6th Amendment right to counsel vis-a-vis confessions?

Back 174

Guarantees the right of assistance of counsel in all criminal proceedings which include all critical stages of a prosecution after judicial proceedings have begun (formal charges have been filed).

Police are prohibited from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel after the defendant has been charged UNLESS he has waived his right to counsel.

Front 175

What is the difference between the 6th Amendment right to counsel and the 5th Amendment right to counsel?

Back 175

The 6th Amendment right only attaches before formal proceedings have begun. Thus a defendant who is arrested but not yet charged does not have a 6th Amendment right to counsel but does have a right to 5th Amendment counsel.

Front 176

Are 6th Amendment rights offense specific?

Back 176

Yes - if 6th has attached, he may be questioned regarding unrelated uncharged offenses (this may violate the 5th, below). Test for different offenses same as DJ.

Front 177

What is the 5th Amendment privelege against si?

Back 177

The Miranda warnings must be given for an admission or confession to be admissible.

Front 178

What are the Miranda warnings?

Back 178

1) He has the right to remain silent

2) Anything he says can be used against him in court

3) He has the right to an attorney

4) If you cannot afford an attorney the court will appoint one for you

Front 179

When are the Miranda warnings required and what are some rules?

Back 179

Prior to interrogation by police, if:

1) Only necessary if defendant knows he is being interrogated by police

2) Only if person is in custody, if person's freedom of action is denied in a significant way, determined by an objective standard (arrest is custody, a routine traffic stop is not)

3) Interrogation required - includes words or conduct by the police that they should know would likely elicit a response from the defendant (spontaneous statements are not interrogation, nor are standard booking questions)

4) Miranda rights can be waived but must be knowing, voluntary, and intelligent

5) Miranda applies to both inculpatory and exculpatory statements

6) Miranda does not apply at a grand jury, even if the witness is compelled by subpoena to be ther

Front 180

When can the accused terminate an interrogation and when may the police start questioning again?

Back 180

1) If the accused says, "I don't want to answer any more questions," the police must scupulously honor his request by not badgering him, though the police are allowed to later question him on an unrelated crime with fresh warnings.

2) If the defendant says I want a lawyer unambiguously, all questioning must cease until counsel is provided (unless there's a waiver) or defendant initiates questioning.

Front 181

What is the effect of a Miranda violation?

Back 181

Evidence obtained in violation of Miranda is inadmissible, except

1) Impeaching the defendant's trial testimony
2) Question, warn, question again = admissible unless seemingly intentional
3) Five justices held where there was no majority opinion that nontestimonial fruits need not be suppressed.

Front 182

What is the public safety exception to Miranda?

Back 182

Where interrogation was reasonably prompted by concern for public safety (where's the gun)?

Front 183

What are the Miranda warnings?

Back 183

1) He has the right to remain silent

2) Anything he says can be used against him in court

3) He has the right to an attorney

4) If you cannot afford an attorney the court will appoint one for you

Front 184

When are the Miranda warnings required and what are some rules?

Back 184

Prior to interrogation by police, if:

1) Only necessary if defendant knows he is being interrogated by police

2) Only if person is in custody, if person's freedom of action is denied in a significant way, determined by an objective standard (arrest is custody, a routine traffic stop is not)

3) Interrogation required - includes words or conduct by the police that they should know would likely elicit a response from the defendant (spontaneous statements are not interrogation, nor are standard booking questions)

4) Miranda rights can be waived but must be knowing, voluntary, and intelligent

5) Miranda applies to both inculpatory and exculpatory statements

6) Miranda does not apply at a grand jury, even if the witness is compelled by subpoena to be ther

Front 185

When can the accused terminate an interrogation and when may the police start questioning again?

Back 185

1) If the accused says, "I don't want to answer any more questions," the police must scupulously honor his request by not badgering him, though the police are allowed to later question him on an unrelated crime with fresh warnings.

2) If the defendant says I want a lawyer unambiguously, all questioning must cease until counsel is provided (unless there's a waiver) or defendant initiates questioning.

Front 186

What is the effect of a Miranda violation?

Back 186

Evidence obtained in violation of Miranda is inadmissible, except

1) Impeaching the defendant's trial testimony
2) Question, warn, question again = admissible unless seemingly intentional
3) Five justices held where there was no majority opinion that nontestimonial fruits need not be suppressed.

Front 187

What is the public safety exception to Miranda?

Back 187

Where interrogation was reasonably prompted by concern for public safety (where's the gun)?

Front 188

What are the rules for lineups?

Back 188

A suspect has a 6th Amendment right to counsel at any post-charge lineup or showup.

An accused does not have a right to counsel at photo identifications or when police take physical evidence, such as handwriting exemplars or fingerprints from him.

An identification denies due process if the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification.

(Can't refuse to participate in lineup on 5th amendment grounds)

Front 189

What are the remedies for unconstitutional lineups - ID's?

Back 189

1) Exclusion of the in-court identification is the remedy, but is rarely granted, because:

2) Independent source rule says that the incourt identification has independent source, such as the opportunity to observe at the time of the crime)

Bonus: Admissibility of identification evidence should be determined at a suppression hearing in the absence of the jury, but the exclusion of the jury is not constitutionally required.

The government has the burden of proving 1) counsel was present 2) accused waived right to counsel 3) there is an independent source for the in court ID.

Accused has burden of showing a due process violation.

Front 190

What is the requirement to detain a person?

Back 190

There must be a finding of probable cause. If no warrant has issued upon probable cause (or grand jury indictment), then a preliminary hearing must be held within a reasonable time (48 hours) of significant restrains of an arrestee's liberty (bail or jail NOT ROR).

No real remedy here other than to exclude evidence discovered during unlawful detention.

Front 191

What are a defendant's rights to bail?

Back 191

1) There is no constitutional right to bail, only freedom from excessive bails and fines

2) However, most state constitutions guarantee bail other than capital crimes. Bail should not be set higher than needed to guarentee a return to court - refusal to grant or too high of a bail can be appealed immediately.
SC held Bail Reform Act ok - allows arrestees to be held without bail if they pose a danger or would fail to appear at trial.

3) Arbitrary denial of bail violates due process - detainees must be given the opportunity to prove eligibility

Front 192

What are the crim pro rules for holding someone who is incompetent to stand trial?

Back 192

Must be essentially identical for those for committment of those who are not accused of a crime, otherwise a denial of equal protection.

Front 193

Who uses grand juries?

Back 193

The feds and states east of the Mississippi all seem to use grand juries while the western states use informations.

The right to GJ has not been applied via the 14th.

Front 194

What non-rights does a defendant have with respect to a grand jury proceeding?

Back 194

GJ proceedings are conducted in secret. The defendant has no right to notice that a GJ is considering proceedings against him, to be present and confornt witnesses at the proceeding, or to intoduce evidence before the grand jury.

Front 195

What non-rights do GJ witneeses have?

Back 195

GJ witnesses do not get Miranda warnings, nor is he entitled to a warning that he is a potential defendant when called to testify, and witnesses have no right to have counsel present.

Front 196

Can GJ base its indictment on evidence that would not be admissible at trial?

Back 196

Yep, and def. cannot quash for this reason.

Front 197

What are the 3 main things to remember for MBE?

Back 197

1) Defendant has no right to counsel during the hearing
2) GJ can consider evidence that would not be allowed at trial
3) The defendant must appear if called, although he can refuse to answer specific questions on the grounds that they may incriminate him.

Front 198

Can a grand jury subpoena be quashed on 4th Amendment grounds for lack of probable cause?

Back 198

No.

Front 199

What if grand jury selection is made from a grand jury where minorities have been excluded?

Back 199

No harmless error test - conviction will be reversed.

Front 200

How does one determine if a defendant's 6th Amendment rights to a speedy trial have been violated?

Back 200

Totality of the circumstances: Length of delay, reason for delay, whether defedant asserted his right, and prejudice to defendant. The remedy is dismissal with prejudice.

Front 201

When does a right to speedy trial attach
?

Back 201

When defendant has been arrested or charged. If the defendant is charged and is incarcerated in another jx, reasonable efforts must be made to obtain the presence of the defendant. Also, it is a violation of the right to a speedy trial to permit the prosecution to indefinitely suspend charges.

Front 202

What is the prosecutor's duty to disclose exculpatory evidence?

Back 202

The government must turn over exculpatory evidence to a defendant.

Failure to do so, whether inadvertent or intentional, will result in reversal if:

1) the evidence is favorable to him because it impeaches or is exculpatory, and

2) Prejudice has resulted (there is a reasonable probability that the result of the case would have been different if the undisclosed evidence had been presented at trial.)

Front 203

Must the defense give notice that it plans to use the insanity defense?

Back 203

Yes.

Front 204

What are the rules for an alibi defense?

Back 204

If an alibi is to be used the prosecution must give the defense a list of its witnesses. The prosecution must give the defendant a list of the witnesses it will use to rebut the defense. Finally, a prosecutor cannot comment at trial on defendant's failure to produce a witness named as supporting the alibi or on failure to present the alibi itself.

Front 205

What level must the evidence of defendant's competency to stand trial reach?

Back 205

The state may place a "preponderance of the evidence" requirement on the defendant but anything higher is unconstitutional.

Front 206

What happens after a successful insanity defense?

Back 206

The person may be confined to a mental hospital for a term longer than the maximum period of incarceration for the offense. However, having regained sanity, the defendant cannot be indefinitely committed because he is unable to prove himself safe to others.

Front 207

What is the result of pretrial publicity?

Back 207

Excessive pretrial publicity which is prejudicial to defendant may require change of venue or retrial.

Front 208

What is the public and presses rights to an open preliminary proceeding?

Back 208

These hearings are presumptively open to the public and press although pretrial suppression hearings may be closed to the public under limited circumstances (e.g. the party seeking closure has an overriding interest likely to be prejudiced by disclosure and there is no reasonable alternative besides closure).

Front 209

What is the public and presses rights to an open trial?

Back 209

The public and the press have a right to attend the trial itself, even when prosecution and defense agree to have it be closed. The state may even broadcast the trial on television if it so chooses.

Front 210

What are the rules for having an unbiased judge?

Back 210

Due process is violated if the judge is shown to have actual malice against the defendant or to have had a financial interest in having the trial result in a guilty verdict.

Front 211

Must the judge be a lawyer?

Back 211

A defendant in a minor misdemeanor prosecution has no right to have the trial judge be a lawyer if upon conviction the defedant has a right to a trial de novo in a court with a lawyer-judge, but for serious crimes, the judge probably must be law-trained.

Front 212

What are some miscellaneous trial rules that will result in a due process violation?

Back 212

1) The trial is conducted in a manner making it unlikely that the jury gave the evidence reasonable consideration.

2) The state compels the defendant to stand trial in prison clothing

3) The state compels the defendant to stand trial physically shackled unless the court finds the shackling justified by concerns about courtroom security or escape, or,

4)The jury is exposed to influence favorable to the prosecution.

5)Exculpatory evidence may not be destroyed by police in bad faith

Front 213

When is a right to a jury authorized?

Back 213

Only if imprisonment for more than 6 months is authorized.

Front 214

Is a jury required for contempt?

Back 214

For civil contempt, no jury is required. For criminal contemp, cumulative penalties of more than 6 months cannot be imposed without affording the defendant the right to a jury trial, unless the contempt is imposes during trial.

Further, a contemnor may be placed on probation for up to five years without a right to a jury so long as a probation violation is not longer than 6 months' jail time.

Front 215

What is the minimum number of jurors?

Back 215

6. A six person jury must be unanimous.

Front 216

Must a jury be unanimous?

Back 216

No, a state may authorize verdicts of 9-3 to convict but the Supreme Court probably would not approve an 8-4 vote for conviction.

Front 217

What rights does defendant have vis-a-vis the venire?

Back 217

To be taken from a representative cross section of the community. Need only show the underrepresentation of a a distinct and numerically significant group in the venire to show his jury trial right was violated.

Front 218

What is the procedure for challenging peremptory challenges?

Back 218

Use of preempatory challenges to exclude potential jurors solely on account of their race or gender is prohibited by the Equal Protection Clause.

1) The defendant must show facts or circumstances that raise an inference that the exclusion was based on race or gender.

2) Upon such a showing, the prosecutor must come forward with a race-neutral explanation for the strike (even an unreasonable explanation is sufficient, as long as it is race-neutral)
3) The judge then determines whether the prosecutor's explanation was the genuine reason for striking the juror, or merely a pretext for purposeful discrimination. If the judge believes that the prosecutor was sincere, the strike may be upheld.

Front 219

What are the rules for an impartial jury?

Back 219

1) Jurors may be questioned on racial prejudice if race is bound up in the case or he is accused of an interracial capital crime.

2) Jurors may not be excluded for cause for expressing a doubt or scruple about the death penalty, it must be determined if the jurors views would prevent or substantially impair performance of his duties in accordance with his instructions and oath. A death sentence imposed by a jury from which a juror was improperly excluded is subject to automatic reversal.

Front 220

What if the judge won't exclude someone for cause when they should?

Back 220

If a trial court refuses to exclude a juror for cause whom the court should exclude, and the defendant uses a peremtory challenge to exclude them, there is no constitutional violation.

Front 221

Are inconsistent verdicts reviewable (defendant guilty, codefendant guilty)?

Back 221

No.

Front 222

Can a judge make a determination about facts which provide for a sentence enhancement?

Back 222

No, this is a denial of a right to a jury trial.

This includes determinations after guilty pleas as well.

Front 223

What is the rule for violation of the right to counsel at trial (including the erroneoous disqualification of a privately retained lawyer)?

Back 223

Automatic reversal.

Front 224

What about non-trial counsel denials?

Back 224

Harmless error test.

Front 225

When do you have a right to counsel?

Back 225

1) Custodial police interrogation
2) Post-indictment interrogation
3) Preliminary hearings (PC to prosecute)
4) Arraignment
5) Post-charge lineups
6) Guilty plea and sentencing
7) Felony trials
8) Misdemeanor trials when imprisonment is actually imposed or a suspended jail sentence is imposed
9) Overnight recesses during trial
10) Appeals as a matter of right
11) Appeals of guilty pleas

Front 226

When do you not have a right to counsel?

Back 226

1) Blood sampling
2) Taking of handwriting or voice exemplars
3) Precharge or investiagtive lineups
4) Photo identifications
5) Preliminary hearings to determine probable cause to detain
6) Brief recesses during the defendant's testimony at trial
7) Discretionary appeals
8) Parole and probation revocation proceedings
9) Post-conviction proceedings

Front 227

Can right to counsel be waived / can you defend yourself?

Back 227

1) If in the judgement of the judge, defendant's waiver of right to counsel is knowing and intelligent, he need not be found capable of representing himself effectively

2) No right to represent yourself on appeal

Front 228

Can a state seek reimbursement from a defendant that it represented when he becomes able to pay?

Back 228

1) Yes.

Front 229

What is the right to effective counsel?

Back 229

1) All lawyers are presumed effective.

2) Deficient performance must be shown by defedant


3) But for the defective performance, the result of the proceeding would have been different.

4) The deficiencies must be specific, that is, inexperience, complexity of defenses, lack of time to prepare, accessibility of witnesses to counsel, gravity of charges is not enough

Front 230

What are two ineffective assistance of counsel circumstances that haven't worked in the past?

Back 230

1) Trial tactics
2) Failure to raise a constitutional defense that is later invalidated

Front 231

Is joint representation a conflict of interest?

Back 231

Not per se invalid, but if counsel notifies of a conflict before or at trial, and judge refuses to appoint separate counsel, the defendant is entitled to automatic reversal.

Front 232

Is defendant's conflict of interest with his attorney a ground for relief?

Back 232

No.

Front 233

Is there a right of joint representation?

Back 233

No, if the government can show a potential conflict of interest.

Front 234

Must the state provide a psychiatrist for someone who is going to plead insanity?

Back 234

Yes.

Front 235

Does the right to counsel forbid the seizure of drug money and property which was going to be used to pay for a lawyer?

Back 235

No.

Front 236

Do you have a right to counsel while you are testifying?

Back 236

No - and you may be sequestered during short breaks.

Front 237

Do you have a right to confront witnesses?

Back 237

1) Yes, but face to face confrontation is not required when preventing such confrontation serves an important public purpose (protecting child witnesses from trauma). Also, a judge may remove a disruptive defendant and a defendant may leave voluntarily during trial.

Front 238

What if def is represented jointly, and codefendant has made a confession that implicates defendant?

Back 238

The statement cannot be used by the prosecution, even if it interlocks with your defendant's confession which is admitted. The codefs statement is admissible if:

1) All portions referring to defendant can be eliminated
2) The confessing codefendant takes the stand and subjects himself to cross examination with respect to truth or falsity of what the statement asserts, or

3) The confession of the nontestifying co-defedant is being used to rebut the defedant's claim that his confession was obtained coercively.

Front 239

Can a defendant waive the right to confrontation?

Back 239

Yes, through wrongdoing (intimidation). At fed level, standard is preponderance

Front 240

Who is the burden on with respect to affirmative defenses?

Back 240

Defedant (insanity, self-defense)

Front 241

What is the deal with guilty pleas and what is the remedy?

Back 241

A guilty plea must be voluntary and intelligent. The defendant must be addressed personally and in open court on the record. The judge must be sure the defendant understands:

1) The nature of the charge and the crucial elements of the crime charged,

2) The maximum possible penalty and any mandatory minimum

3) That he had a right to plead not guilty and that if he does plead guilty, he waives the right to trial

4) It is sufficient that the record reflects that the nature of the charge and the elements of the crime were explained to the defedant by his own counsel.

The remedy is withdrawing the plea and taking it anew.

Front 242

What are reasons you can and can't attack a guilty plea?

Back 242

1) Involuntariness
2) Lack of jurisdiction
3) Ineffective assistance of counsel
4) Failure to keep the plea bargain

No no? An intelligent choice among alternatives.

Front 243

Does a judge have to keep a plea bargain?

Back 243

A judge does not have to accept a plea.

Front 244

What are the collateral effects of guilty pleas?

Back 244

A guilty plea neither admits the legality of incriminating evidence nor waives 4th Amendment claims in a subsequent civil damages action.

A guilty plea may be used as a conviction in other proceedings when relevant.

Front 245

What if, after a retrial, a harsher sentence is imposed?

Back 245

Judge must say on the record the reasons for the harsher sentence, unless it was jury sentencing and jury didn't know about first trial.

Front 246

When is the death penalty not allowed?

Back 246

1) Rape of an adult woman
2) Felony murder where defendant wasn't a major participant and he didn't act with reckless indifference to the value of human life
3) Insane persons at the time of execution
4) People are mentally retarded
5) Minors (committed crime while under 18).

Front 247

What must a death penalty statute look like?

Back 247

The judge or jury must have reasonable discretion, full information concerning defendants, and guidance in making the decision. The statute cannot be vague and must allow the sentencer to consider all mitigating evidence.

Front 248

What if the death sentence is based on the aggravating factor of defendant's prior conviction and that conviction is overturned?

Back 248

The sentence must be reversed.

Further, a death sentence that has been affected by a vague or otherwise unconstitutional factor can still be upheld, but only if all the aggravating and mitigating factors are reweighed and death is still found to be appropriate.

Front 249

What is the rule for the 8th Amendment?

Back 249

A penalty that is grossly disproportionate to the seriousness of the offense is cruel and unusual.

Front 250

Are status crimes constitutional?

Back 250

No.

Front 251

Can a judge consider his belief that the defendant committed perjury while testifying in sentencing?

Back 251

Yes.

Front 252

What if aggregate imprisonment exceeds the maximum period fixed by statute and results directly from involuntary nonpayment of a fine or court costs?

Back 252

There is an impermissable discrimination and violation of the Equal Proetction clause.

Front 253

What are some appeal rules?

Back 253

1) There is no federal constitutional right to appeal
2) Indigents must be given counsel at state expense during a first appeal granted to all as a matter of right and for appeals of guilty pleas (and nolo contendre).
3) A second, discretionary appeal need not be paid for.
4) If the Supreme Court announces a new rule of Criminal procedure, (one not dictated by precedent) in a case on direct review, the rule must be applied to all other cases on direct review.

Front 254

What are some habeas rules?

Back 254

1) An indigent has no right to free counsel during a habeas proceeding.

2) Petitioner has the burden by preponderance to show an unlawful detention

3) The state may appeal the grant of a writ of habeas corpus

4) Defendant can only bring a habeas if he is in custody

5) This includes anyone who has not fully served the sentence about which he is to complain.

Front 255

When is counsel necessary for parole and probation revocation?

Back 255

If a new sentence can be imposed ,or if representation is necessary to a fair hearing

Front 256

What are some prisoners rights?

Back 256

1) No fourth amendment rights
2) Due process is violated only if the regulations impose atypical and significant hardship in relation to normal prison conditions
3) Right of access to courts must be reasonable
4) Prisoners outgoing mail cannot be regulated but incoming can.
5) Freedom of speech, association, and religion may be burdened by regulations reasonably related to penological interests. A federal statute prevents interference with religous practices absent a compelling interest.
6) Prisoners have a right to adequate medical care under the 8th Amendment

Front 257

When does jeopardy attach?

Back 257

1) Bench trial: first witness is sworn
2) Jury trial: empaneling and swearing of the jury.
3) Jeopardy attaches at juvenile proceedings.

Front 258

When may a defendant be retried despite jeopardy having attached?

Back 258

1) A retrial do to a hung jury
2) Manifest necessity to abort the original trial (military invasion or something) or termination by defendant for anything other than acquittal on the merits
3) When he has appealed a conviction successfully unless the appeal was insufficient evidence to support a guilty verdict, though he cannot be retried for a GREATER offense, though a greater sentence can (except death)
4) Breach of a plea bargain

Front 259

What makes an offense different from another for double jeopardy purposes?

Back 259

If a crime requires proof of an element that another does not require, even though some of the same facts may be necessary to commit both crimes.

Front 260

What about cumulative punishments for offenses constituting the same crime?

Back 260

Even if two crimes constitute the same offense under this test, if there was a legislative intent to have the cumulative punishments, then multiple punishments are permissible (i.e. sentenced for robbery and using a weapon during the commission of a crime).

Front 261

What about lesser included offenses?

Back 261

Trial for greater offenses is barred when jeopardy attaches for lesser included offenses.

Exception: retrial for murder is allowed if victim dies after attachment of jeopardy for battery.

Front 262

What are some other random rules on DJ?

Back 262

1) Conduct that was used as a sentence enhancer can be the basis for a trial without violating double jeopardy.

2) DJ is not violated if government brings a criminal suit against defendant for conduct for which he has been found liable in civil court unless it is clear from statutory scheme of civil court that the purpose is to impose a criminal penalty.

Front 263

What is the separate sovereigns rule?

Back 263

Two states, or state and fed, or fed and indian reservation, may try a person for the same crime.

Not a state and its municipalities.

Front 264

Can prosecution appeal an acquittal on the merits?

Back 264

No, but it can appeal any dismissal besides that.

Cannot appeal a death penalty.

Also, appeals are not barred if a successful appeal would not require retrial.

Can appeal a sentence pursuant to a statute authorizing such review.

Front 265

Does collateral estoppal apply in criminal court?

Back 265

Yes - a factual determination made that is inconsistent with one required for conviction precludes trial and conviction (by the same sovereign).

Front 266

What is the privilege against self-incrimination?

Back 266

1) Only assertable by natural persons.

2) Is waived if you don't assert in a civil proceeding in later criminal trials (that is, the evidence gets it).

3) Furnishing one's name during a Terry stop does not violate the 5th Amendment.

4) Defendant doesn't have to take the stand, everyone else must say it after every question.

5) Protects testimonial evidence, not real or physical evidence. Must relate to a factual assertion or disclose information.

6) Only COMPELLED self-incrimination is prohibited

Front 267

What about comments on silence?

Back 267

Absolutely not, unless 1) defendant moves judge to instruct the jury not to draw an adverse inference, and the judge may offer this instruction sua sponte over defendant's objection

2) The defendant has asserted that he hasn't offered his side of the story, the prosecutor can comment on this

* Harmless error test applies here

Front 268

What are some random SI immunity rules?

Back 268

Use and derivative use immunity guarantees that the witnesses testimony won't be used against them, though the prosecutor may still prosecute if it can prove an independent source.

Once granted, testimony can be compelled.

Such testimony is coerced and therefore involuntary - hence, it cannot be used against a person, even for impeachement of a different defendant.

Immunized testimony can be used in a trial for perjury.

Finally, if the SOL has run and there is no possibility of incrimination then there is no privelege against SI.

Front 269

What rights do juveniles get?

Back 269

1) counsel
2) Written notice of charges
3) Opportunity to confront witnesses
4) The right not to testify
5) The right to have "guilt" established by proof beyond a reasonable doubt

Front 270

What are some random forfeiture rules?

Back 270

1) Notice and a hearing is required before forfeiture of personal property (not before seizure)

2) Notice and a hearing is required before the seizure of real property except for in exigent circumstances

3) The Excessive Fines clause of the 8th Amendment applies only to fines imposed as punishment and not to civil fines. Only excessive if grossly disproportionate.

5) The due process clause does not require a defense that the owner took all reasonable steps to see that property was used legally at least where owner voluntarily entrusted the property.